Records bill would thwart transparency, PAR says

May 5, 2009

Louisiana law generally provides that documents of public bodies shall be open to the public. However, hundreds of exceptions to the general rule have been created both in statute and case law. This session, the Legislature is again considering redefining the public records exception for the office of the governor. One bill (SB 278) being pushed by the administration could have devastating effects on the status of public records and should be rejected.

While a limited exception for the governor may be in order, it should be crafted narrowly to ensure maximum access while protecting only the most sensitive documents. A PAR survey of public records exceptions for governors among the states indicates that few states (CA, KS, UT, VA) allow their governor considerable discretion in designating certain records as private and/or exempt broad categories of records in the governor’s office – such as working papers, correspondence or records that would reveal contemplated policy. However, none statutorily grants a public records exception as broad as the one for Louisiana’s governor.

In 2008, the Louisiana Legislature narrowed the public records exception for the governor’s office by deciding that the exception would no longer be extended to the 70+ agencies housed within the office of the governor. However, four separate bills that would have narrowed or eliminated the public records exception for the governor’s executive office failed to pass. At that time, PAR recommended a limited privacy exception for the governor’s office that would protect only records directly and solely in the custody of the governor, his chief of staff or executive counsel, as well as communications between the governor and his chief of staff or executive counsel.

SB 278 would broaden the exception for certain records concerning the governor’s operations. As written, the bill would protect documents that are used, prepared for or held by or on behalf of the governor and relate to:

The governor’s security and schedule;

Intra-office communications of the governor and his staff; or

Executive deliberations and work product.

Whereas current law protects all records (except financial) that are housed within the governor’s office, SB 278 would protect all records – regardless of which agency or branch of government holds them – that meet any of the above-stated criteria. Arguably, any document that specifies a policy directive or preference could be protected.

It would be relatively easy for any agency or branch of government to protect a document on the grounds that it was “used,” “held” or “prepared” on “behalf of” the governor and “relates to” one of the stated items. Vague language such as this, combined with other nuances of SB 278, could result in more records being off-limits to the public than current law allows.

A better approach would be to scrap the existing exception for the governor entirely and instead create a limited exception to protect key documents and communications. PAR recommends a narrow exception that would protect the following:

Documents or communications that directly affect the governor’s security. Such an exception would not protect most calendar items or scheduling documents.

Intra-office communications only between the governor and his chief of staff or executive counsel.

Records directly in the custody of and held only by the governor, his chief of staff or executive counsel.

The governor’s office also would be entitled to public records protections still allowed elsewhere in the law, such as those for documents concerning terrorist-related activity and trade-secret information. The current provision, which opens all documents pertaining to money or financial transactions handled by the governor, should remain in place.

While SB 278 purports to end the overly-broad public records exception for the governor, currently it is not written narrowly enough to achieve the appropriate balance between the people’s right to know how and why policy is created and the governor’s need to maintain a certain degree of confidentiality. The correct solution will protect and allow for the free-flow of ideas and information among a select group of inner-circle staffers, while also protecting the public’s fundamental right to understand its government.